Posted by: Patrick Allen Foster | November 13, 2013

Judicial Quote of the Day: “a winking, nodding, judicial Chimera”

The Tennessee Court of Criminal Appeals handed down its decision in Beasley v. State on October 29, 2013. The appellate court affirmed Frank Beasley’s convictions for facilitation of second degree murder and facilitation of attempted second degree murder. The court also affirmed the trial court’s sentence of 12 years — the maximum for a Range I offender convicted of a Class B felony; the trial court found that four factors merited a sentencing enhancement (against one factor indicating mitigation), leading to a sentence at the top of the range.

Judge Curwood Witt wrote a separate concurring opinion, which I reproduce in its entirety below. (In the interests of full disclosure, I should perhaps mention that Judge Witt, as an adjunct, was once one of my legal writing professors in law school.) Here is Judge Witt’s brief concurring opinion:

I concur in the majority opinion because the majority accurately relfects State v. Bise, 380 S.W.3d 682 (Tenn. 2002), in yielding to trial court discretion to affirm the imposition of a maximum sentence. I only write separately to voice a concern that, after holding that 75 percent of enhancement factors relied upon by the trial court were erroneously applied as matters of law, affirming the sentence per Bise portrays an image of a winking, nodding, judicial Chimera. Bise says that the misapplication of an enhancement factor does not cancel the presumption of reasonableness of the sentence, id. at 709, but surely at some point the number of legal errors in misapplying enhancement factors may reach a critical mass whereupon even an in-range sentence is no longer compliant “with the purposes and principles listed by statute.” Id. at 709-10. I hope our supreme court will be attentive to this issue.


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